Pacific Bridge Services Ltd. v. Wide Tech Shipping Ltd.

HCA012492/1999

HCA12492/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.12492 OF 1999

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Coram: Hon Waung J in Chambers

Date of Hearing: 25 October 2000

Date of Judgment: 25 October 2000

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J U D G M E N T

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1. I have before me two applications, one application by the plaintiff to transfer this action in the High Court to the District Court and an application by the defendant that the ordinary action in the High Court be transferred to the Admiralty List so that it would be heard by the Admiralty judge.

2. The action is for a small claim in the sum of something like $150,000, so it is certainly well within the new jurisdiction of the District Court. There is a defence of time-bar under the appropriate Hague Visby Rules, and it is said by the defendant in resisting the transfer that it would be better for the Admiralty judge to deal with this matter because he can deal with it very quickly and under the provisions of Order 14A as a point of law.

3. It is now conceded that under the new District Court Rules, the District Court has similar power to determine questions of law as in the High Court, so the only remaining question is whether the District Court is not in a proper position to decide the time-bar question that the defendant wishes to raise.

4. The obligation to transfer under Section 43 of the District Court Ordinance makes it clear the obligation of the court. Section 43(3) reads :

"The Court of First Instance is required to make an order under this section unless it is of the opinion that by reason of importance or complexity of any issue arising in the action or proceeding, or for any other reason, the action of proceeding ought to remain in the Court of First Instance."

The emphasis as disclosed in paragraph (3) of Section 43 is quite clear that the High Court must order a transfer unless either of the three conditions are satisfied. It is certainly not a case of importance of the issue, or a case of complexity of the issue which would enable this court to refuse the transfer, so it really comes down to whether it is for any other reason.

5. In my view, although there is no authority before me, "any other reason" should be construed in the same way as the similar provision for leave to go to the Court of Final Appeal, and it has to be of such an exceptional nature of the case which would enable the court to say, in the case of leave to go to the Court of Final Appeal, that it should go up to the Court of Final Appeal, or under Section 43(3), that it should not go down. And I feel, having regard to the facts of this case, that they come nowhere near that criteria. This is a fairly straightforward case. There may be a point of law involved, and the Admiralty judge may be able to deal with it somewhat faster, but that is no reason, in my view, that the court should refuse the transfer to the District Court. I, therefore, feel unable to accede to the request of the defendant to transfer the action to my list. The application of the plaintiff therefore must be allowed.

6. I also order that the costs of the applications be to the plaintiff.

Representation:

Mr Vincent Chan of Messrs Au Yeung, Cheng, Ho & Tin, for the Plaintiff

Mr Stimpson of Messrs Holman Fenwick & Willan, for the Defendant